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Legal implications of nullification of Speaker's election - Bill
March 28, 2011
of the Election of the Speaker: The Consequences
On 10th March
Court set aside the 2008 election of Mr Lovemore Moyo as Speaker
of the House of Assembly on the ground that the election had not
been conducted by a secret ballot as required by Standing Orders.
Since then several lawyers have put forward their views on the consequences
of the Supreme Court's decision. In this Bill Watch we shall attempt
to clarify the consequences.
- has important
constitutional effects: does the decision invalidate everything
done by the House since Mr Moyo's election?
Mr Moyo personally: does he revert to being Member of Parliament
for Matobo North, and must he return the pay and benefits he received
We shall deal
with each in turn.
Significance of the Decision
Does the Supreme
Court's decision mean that everything Mr Moyo did while in office
as Speaker must be regarded as invalid? Does it mean that Acts of
Parliament passed while he held the office of Speaker must now be
treated as null and void - including Constitution
Amendment No. 19 setting up the Inclusive Government and the
Budget legislation for the years 2009, 2010 and 2011?
the answer is: No.
- The Supreme
Court's decision was expressed in the following simple words:
"the election of the second respondent [Mr Lovemore Moyo]
as Speaker is hereby set aside". As the order was not backdated
to August 2008 it must be presumed to operate prospectively from
the 10th March 2011, the date it was handed down by the Supreme
- The Chief
Justice said in his judgment that the decision would have "no
draconian consequences", something he would not have said
if he thought he was undoing all Parliament's work over the last
two and a half years and bringing the Inclusive Government to
- There is
ample legal precedent, mainly in the United States but also in
Commonwealth jurisdictions, for accepting as valid the acts of
a public officer whose appointment or election is later found
to have been invalid. This doctrine, which is known as the "de
facto public officer doctrine” and is based on public policy
and justice, protects the State from the chaos and uncertainty
that would ensue if actions taken by a person apparently occupying
an official position could later be invalidated if it turned out
that the person was not lawfully appointed to that position.
undoubtedly be chaos and uncertainty in Zimbabwe if this Parliament's
Constitution Amendment No. 19 and other Acts were to be regarded
as invalid. For example:
- acts of
the inclusive government and its ministers would be null and void.
- the constitution-making
process would have no legal basis and might have to be scrapped.
to the citizenship law by Constitution Amendment No. 19 would
- many payments
made out of the Consolidated Revenue Fund, in reliance on Appropriation
Acts, including the salaries and allowances of Ministers and MPs,
would be invalid because made without the authority of Parliament.
to the tax laws by Budget legislation over three years would be
reversed to the prejudice of taxpayers [e.g. increases in the
income tax threshold and the tax-free amount for bonuses].
[Note: The Clerk’s
statement of 22nd March expresses the opinion that decisions
made by Mr Moyo while he was de facto Speaker “remain valid
for legal and other consequences.”]
Consequences of the Decision
The Matobo North
Seat Mr Moyo was a Member of the House of Assembly representing
Matobo North when he was purportedly elected Speaker. In terms of
section 41(1)(g) of the Constitution
a member's seat "shall become vacant ... if he becomes Speaker".
If, therefore, Mr Moyo had been validly elected as Speaker he would
have ceased automatically to be a member of the House. But according
to the Supreme Court his election was not valid, so he cannot be
said to have vacated his seat in terms of section 41(1)(g). It might
have been different had he formally resigned his seat, but there
is no suggestion that he ever did so. Things might also have been
different had there been a by-election in Matobo North to fill the
purported vacancy, but there has been no such by-election. Mr Moyo
is therefore a member of the House of Assembly. [Note: So far the
Clerk of Parliament has stuck to his initial view that Mr Moyo has
not reverted to his pre-Speaker position as MP for Matobo North
- notwithstanding advice to the contrary given to him by the Attorney-General,
with a supporting opinion from Professor Lovemore Madhuku.]
Received by Mr Moyo as Speaker - As to the remuneration paid to
Mr Moyo, it was paid in good faith and, apparently, accepted in
good faith. In return for the remuneration Mr Moyo performed the
duties of Speaker even though he was not entitled to do so. If the
remuneration was paid in error it was an error of law and not of
fact, and probably cannot be recovered from Mr Moyo. Different considerations
apply to the benefits enjoyed by Mr Moyo as Speaker: his official
residence and the vehicles with which he was supplied. Since he
is not the Speaker he no longer has a right to them.
of a New Speaker and the Role of the Clerk of Parliament
39(1) of the Constitution, whenever the office of Speaker is vacant
the House of Assembly must not transact any business until someone
has been elected to fill the office. The election is presided over
by the Clerk of Parliament in terms of the Standing Orders of the
suggest that the Clerk of Parliament has arrogated the power to
decide whether or not Mr Moyo is a member of the House of Assembly
and entitled to vote in the election of a new Speaker. Legally he
has no power to decide the question, but since he will preside over
the electoral process he will have to give a ruling on Mr Moyo's
eligibility to vote, if the question is raised.
is his decision to defer the sitting of the House, which was to
resume on 22nd March. He had no power whatever to do that. Also,
his deferral of the Speaker's election to a later date "to
be announced" leaves it unclear who is going to fix that date
and recall the House. The Clerk has no power to do so. Perhaps the
Committee on Standing Rules and Orders can: under section 57(8)(c)
of the Constitution it is responsible for "considering and
deciding all matters concerning Parliament". This is affirmed
by House of Assembly Standing Order 14(1), which states that “There
shall be, for the life of Parliament, a Committee to be designated
the Committee on Standing Rules and Orders which shall consider
and decide all such matters concerning Parliament as it shall deem
the Courts Have Interfered?
The whole contretemps
might have been avoided if the courts had taken the same line adopted
in previous cases involving parliamentary privilege: that the power
of Parliament to regulate its own practices and procedures is accepted
and sustained by all enlightened countries, and the courts should
not interfere in them. The election of a Speaker seems pre-eminently
to be one of the procedures of Parliament that is beyond the jurisdiction
of the courts. Justice Patel however considered that because the
Speaker’s election is regulated by section 39 of the Constitution
the courts were able to scrutinise it to ensure that it had been
constitutionally carried out. Whether he should have gone on to
do so, however, is questionable. It might have been better if he
had heeded the wise words of South African Constitutional Court
judge Ngcobo in a 2006 case:
has a very special role to play in our constitutional democracy
- it is the principal legislative organ of the State. With due
regard to that role it must be free to carry out its functions
without interference . . . Indeed the parliamentary process would
be paralysed if Parliament were to spend its time defending its
legislative process in the courts. This would undermine one of
the essential features of our democracy: the separation of powers.
The constitutional principle of separation of powers requires
that other branches of government refrain from interfering in
parliamentary proceedings . . . Courts must be conscious of the
vital limits on judicial authority and the Constitution’s
design to leave certain matters to other branches of government.
They too must observe the constitutional limits of their authority.”
This is however
immaterial now because the courts have ruled on the question of
the Speaker’s tenure and the consequences arising from that
decision have now to be faced.
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